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Human Trafficking, Smuggling and Slavery

What is human trafficking?

The Palermo Protocol provides the first internationally recognised definition of human trafficking:

"Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or removal of organs."

Human trafficking is a serious crime that can present prosecutors with challenges:

  • It is a crime that is clandestine; it is modern day slavery and victims may be physically or psychologically "imprisoned" in either residential properties (as domestic servants) or places offering sauna and massage services. They are not visible
  • Trafficked victims do not always wish, or are not always able to, co-operate with the authorities as they often fear the consequences of giving evidence against their traffickers
  • Victims of trafficking and slavery are by definition extremely vulnerable; the support required before and during trials to enable them to give evidence should not be underestimated
  • Victims of forced labour are reluctant to report; however bad their circumstances, they consider their situation here to be better than that offered in their home country.
  • Human trafficking cases nearly always cross borders and jurisdictions, requiring investigations and evidence to be obtained from source and transit countries.

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Definition

In terms of prosecutions it is important to understand the difference between persons who are smuggled and those who are trafficked; in some cases the distinction between a smuggled and trafficked person will be blurred and both definitions could easily be applied. It is important to examine the end situation when the victim is recovered to determine whether someone has been smuggled or trafficked.

A number of factors help distinguish between smuggling and trafficking:

  • Smuggling is characterised by illegal entry only and international movement only, either secretly or by deception (whether for profit or otherwise)
  • There is normally little coercion/violence involved or required from those assisting in the smuggling

Smuggling is normally defined as the facilitation of entry to the UK either secretly or by deception (whether for profit or otherwise). The immigrants concerned are normally complicit in the offence so that they can remain in the UK illegally.

Trafficking involves the transportation of persons in the UK in order to exploit them by the use of force, violence, deception, intimidation, coercion or abuse of their vulnerability. The form of exploitation includes sexual and bonded labour exploitation and servitude. Those who are trafficked have little choice in what happens to them and usually suffer abuse due to the threats and use of violence against them and/or their family, or through debt bondage.

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Offences of People Smuggling

Assisting unlawful immigration to a Member State (facilitation) - section 25 of the Immigration Act 1971

Section 25 Immigration Act 1971 creates an offence of assisting unlawful immigration (known as facilitation). The offence was substituted by section 143 Nationality, Immigration and Asylum Act 2002 which came into force on 10 February 2003. This widened and extended the old facilitation provisions and covers any act facilitating a breach of immigration law by a non-EU citizen (including a breach of another Member State's immigration law) and acts covered by the old offence of "harbouring".

Under section 25(1) a person commits an offence if he:

  1. does an act which facilitates the commission of a breach of immigration law by an individual who is not a citizen of the European Union;
  2. knows or has reasonable cause for believing that the act facilitates the commission of a breach of immigration law by the individual; and
  3. knows or has reasonable cause for believing that the individual is not a citizen of the European Union.

The offence is defined broadly enough to encompass both the old offences of assisting illegal entry (whether by smuggling someone in a vehicle or by providing false documents for presentation at a port) or assisting someone to remain by deception (for example by entering into a sham marriage) and other forms of assistance which facilitate a breach of the immigration laws.

Section 25(2) of the Act defines an immigration law as a law which has effect in a member State and which controls, in respect of some or all persons who are not nationals of that State, entitlement to enter, transit or be in the State.

This definition has been clarified and reinforced by the Court of Appeal in the case of Kapoor & Ors [2012] EWCA Crim 435 which held that section 2 Asylum and Immigration (Treatment of Claimants) Act 2004 is not an immigration law for the purposes of section 25(2). Under Section 25(2) an immigration law is a law determining whether a person is lawfully or unlawfully entering, transiting or being in the UK. Section 2 creates an offence of not having an immigration document at a leave or asylum interview and merely controls or regulates the entitlement to be in the UK and therefore cannot be relied upon as the immigration law which has been breached. The Court described the purpose of the section 2 offence as an offence to deter and punish a person who comes to the UK and who has, by the time he presents himself at a leave or asylum interview, divested himself of a passport without reasonable excuse.

Before considering charge then, early consultation with Immigration authorities may be advisable in determining whether the law breached falls into an entitlement to enter, transit or be in the UK or is merely regulatory or administrative in nature. Officers from Immigration authorities have been alerted to name the specific breach on the MG3 when referring cases to the CPS and to note it on the charging report (MG5).

In Kapoor & Ors, the Court expressed surprise that there was no reference to the particular immigration law said to have been breached in the particulars of offence in the indictment, as the defendant is entitled to know which particular law he is being accused of breaching. For the purposes of settling indictments then in cases alleging section 25(1) Immigration Act 1971, care is required in selecting the immigration law said to have been breached and consideration should be given to specifying the immigration law in the particulars of offence.

Where the offence has been committed to assist asylum seekers, as in the case of Kapoor & Ors, but there are difficulties in obtaining evidence of direct (financial) gain to support an offence under section 25A, prosecutors should consider whether there might be sufficient evidence to infer gain in return for assistance in facilitating a breach of immigration law. In Kapoor some of the appellants were on benefits and yet were able to travel on a number of occasions by air to India during a short period, stay in hotels and re-purchase flight tickets when their boarding passes were handed over to an escort. Even though there was no direct evidence of gain, the jury could have been asked to infer that their circumstances and their agreement to act as they did was for gain. Each case will of course depend on its own circumstances.

In cases where prosecutors are considering a charge of conspiracy to commit section 25(1), the prosecution must prove knowledge and intention by the defendants and not merely "reasonable cause for believing" that the act would facilitate the commission of a breach of Immigration law. (Saik [2006] 2 AC 18).

Section 25(5) of the Act was replaced by section 30(1) of the UK Borders Act 2007 which came into force on 31 January 2008. This now covers acts committed in the United Kingdom, regardless of the nationality of the perpetrator as well as acts committed overseas.

The offence is an either-way offence and the maximum sentence on indictment is up to 14 years imprisonment. It is also a "lifestyle offence" under schedule 2 of the Proceeds of Crime Act 2002.

In R v Naillie and Another [1993] 1 All ER 75, [1992] 1 WLR 1099, [1992] the defendants were convicted of facilitating entry into the UK contrary to s. 25(1) of the Immigration Act 1971 by making arrangements for people travelling to the UK using false passports. The defendants appealed on the ground that it had not been shown that when the people arrived in the UK, claiming asylum, they were illegal entrants. The appeals were allowed. It was held that:

  • Under the 1971 Act entry was not to be equated with disembarkation. Those who disembarked without a right of entry were not automatically illegal entrants
  • An asylum seeker who claimed asylum while still within the designated area was not an illegal entrant, albeit he might have forged documents or no documents at all
  • On the facts, none of those whose arrival in the United Kingdom was assisted by the defendants, was an illegal entrant

Whilst Naillie is an important case, the section 25 offence has since been amended by s.143 Nationality, Immigration and Asylum Act 2002.

Other helpful references can be found in R v Javaherifard and Miller [2005] EWCA Crim 3231 which gives guidance on what is likely and not likely to constitute facilitation of another person's unlawful stay in the UK.

Prosecutors are also alerted to the case of Sternaj & Sternaj v DPP [2011] EWHC 1094 (Admin) - see statutory defences: section 31. The appellants were convicted of section 25(1) offences but in dismissing their appeals the Court remarked that in a case such as this where the appellants were registered asylum seekers who facilitated a young child (the son of one of the appellants) using another child's passport, the prosecution might question whether it was in the public interest to prosecute.

The leading sentencing guide case is R v Le and Stark [1999] 1 Cr.App.R.(S.) 422. This states that the most appropriate penalty for all but the most minor offences of this nature is custody. Aggravating features include repeat offending; committed for financial gain; involving strangers rather than family members; a high degree of planning / sophistication; the number of immigrants involved and the level of involvement of the offender. For guidance on non-commercial facilitation, see R v Panesar [1988] Cr.App.R.(S.) 457. In the case of commercial facilitation see R v Brown [1997] 1 Cr.App.R.(S.) 112, R v Woop [2002] 2 Cr.App.R.(S.) 65 and R v Akrout [2003] EWCA Crim 291.

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Facilitating entry by asylum seekers to the UK for gain - section 25A Immigration Act 1971

This offence was substituted by section 143 Nationality, Immigration and Asylum Act 2002 and came into force on 10 February 2003. Section 29 of the UK Borders Act 2007 inserted "or the entry into" the UK under section 25A (1) (a).

Under section 25(A) (1) a person commits an offence if he:

  1. knowingly and for gain facilitates the arrival in or the entry into the United Kingdom of an individual, and
  2. knows or has reasonable cause to believe that the individual is an asylum-seeker.

Under section 25A (2) Immigration Act 1971, an "asylum-seeker" means a person who intends to claim that to remove him from or require him to leave the United Kingdom would be contrary to the United Kingdom's obligations under the Refugee Convention (within the meaning given by section 167(1) of the Immigration and Asylum Act 1999 (c. 33) (interpretation)), or the Human Rights Convention (within the meaning given by that section).

The offence covers any actions done whether inside or outside the United Kingdom, regardless of the nationality of the perpetrator. No element of smuggling is required to make out the offence; the asylum seekers do not need to be illegal entrants. The offence is aimed at those who, for gain, bring asylum seekers to the UK to enable them to claim asylum. This does not apply to anything done by a person acting on behalf of an organisation, which aims to assist asylum-seekers, and does not charge for its services: section 25A(3) Immigration Act 1971. 

Prosecutors are alerted to the case of Kapoor & Ors [2012] EWCA Crim 435 (see section 25(1) guidance) in which there were difficulties in obtaining evidence of direct (financial) gain to support a charge under section 25A. Prosecutors should consider whether there might be sufficient evidence to infer gain in return for assistance in facilitating a breach of immigration law by those who then may go on to (falsely) claim asylum.

The offence covers any actions done whether inside or outside the United Kingdom, regardless of the nationality of the perpetrator.

The offence is an either-way offence and the maximum sentence on indictment is up to 14 years imprisonment, a fine or both. It is also a "lifestyle offence" under schedule 2 of the Proceeds of Crime Act 2002.

Bearing in mind the nature of the offences and the sentences that can be imposed, it is likely that most such cases will not be suitable for summary trial unless there are significant and exceptional circumstances to justify this course of action. The factors in R v Le and Stark [1999] 1 Cr.App.R.(S.) 422 would appear to apply equally here.

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Assisting entry to the UK in breach of deportation or exclusion order - section 25B(1) Immigration Act 1971

This offence was substituted by section 143 Nationality, Immigration and Asylum Act 2002 and came into force on 10 February 2003.

Under section 25(B)(1) a person commits an offence if he:

  1. does an act which facilitates a breach of a deportation order in force against an individual who is a citizen of the European Union, and
  2. does an act which facilitates a breach of a deportation order in force against an individual who is a citizen of the European Union, and

In cases where the Secretary of State personally directs that the exclusion from the United Kingdom of an individual who is a citizen of the European Union is conducive to the public good, subsection (3) below applies.

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Assisting entry / remaining of excluded person - section 25B(3) Immigration Act 1971

Under Section 25B(3) a person commits an offence if he:

  1. does an act which assists the individual to arrive in, enter or remain in the United Kingdom;
  2. knows or has reasonable cause for believing that the act assists the individual to arrive in, enter or remain in the United Kingdom; and
  3. knows or has reasonable cause for believing that the Secretary of State has personally directed that the individual's exclusion from the United Kingdom is conducive to the public good.

The offences cover any actions done whether inside or outside the United Kingdom (amended by section 30 UK Borders Act 2007). It is an either-way offence and the maximum sentence on indictment is up to 14 years imprisonment, a fine or both. It is also a "lifestyle offence" under schedule 2 of the Proceeds of Crime Act 2002.

Bearing in mind the nature of the offences and the sentences that can be imposed, it is likely that many cases will not be suitable for summary trial unless there are significant and exceptional circumstances to justify this course of action. The factors in R v Le and Stark [1999] 1 Cr.App.R.(S.) 422 would appear to apply equally here.

Under Section 25C Immigration Act 1971, where a person is convicted on indictment of an offence under sections 25, 25A or 25B, the court may order the forfeiture of a vehicle, ship or aircraft used or intended to be used in connection with the offence if the convicted person owned, was in possession of or was driving it at the time.

Under Section 25D Immigration Act 1971, if a person has been arrested for an offence under sections 25, 25A or 25B, a senior officer or a constable may detain a relevant ship, aircraft or vehicle.

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Trafficking in prostitution - section 145 of the Nationality, Immigration and Asylum Act 2002

This offence commenced on 10 February 2003 but was repealed by Sexual Offences Act 2003 (schedule 7) as of 1 May 2004 [SI 874 (2004)] and substituted by offences in sections 57, 58 and 59 Sexual Offences Act 2003. This offence can thus only be charged where the acts that amount to the commission of the offence, were committed after 10 February 2003 and before 1 May 2004.

Under section 145(1), a person commits an offence if he arranges or facilitates the arrival in the United Kingdom of an individual (the "passenger") and:

  1. he intends to exercise control over prostitution by the passenger in the United Kingdom or elsewhere, or
  2. he believes that another person is likely to exercise control over prostitution by the passenger in the United Kingdom or elsewhere.

Subsection 2 creates an offence in similar terms where the travel is within the UK.

A further offence is committed for facilitating the transportation of a prostitute outside of the UK subsection 3. All these offences are either-way offences and on conviction on indictment, are subject to imprisonment for a term not exceeding 14 years, to a fine or to both.

This offence is a 'lifestyle offence' for the purposes of the Proceeds of Crime Act 2002.

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Trafficking into the UK for sexual exploitation - section 57 Sexual Offences Act 2003

(These offences are amended with effect form 6 April 2013 - see below.)

This offence came into force on 1 May 2004. Section 31(3) of the UK Borders Act 2007 inserted 'or the entry into the UK' under section 57(1) with effect from 31 January 2008.

Under section 57(1) a person commits an offence if he intentionally arranges or facilitates the arrival in or the entry into the United Kingdom of another person (B) and either:

  1. he intends to do anything to or in respect of B, after B's arrival but in any part of the world, which if done will involve the commission of a relevant offence, or
  2. he believes that another person is likely to do something to or in respect of B, after B's arrival but in any part of the world, which if done will involve the commission of a relevant offence.

A relevant offence is defined under Section 60(1) Sexual Offences Act 2003 as:

  1. an offence under Part 1 of the Sexual Offences Act 2003;
  2. an offence under section 1(1)(a) of the Protection of Children Act 1978;
  3. anything done outside England and Wales and Northern Ireland which would be an offence if done in England and Wales or Northern Ireland.

Sections 60(2) and 60(3) are amended by section 31(4) UK Borders Act 2007 to apply to anything done whether inside or outside the United Kingdom, with effect from 31 January 2008.

This is an either-way offence and on conviction on indictment, is subject to imprisonment for a term not exceeding 14 years. This offence is also a "lifestyle offence" for the purposes of the Proceeds of Crime Act 2002. This offence is likely to lead to a significant sentence on conviction. Such offences would almost certainly receive sentences over 12 months and thus should be tried in the Crown Court.

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Trafficking within the UK for sexual exploitation - section 58 Sexual Offences Act 2003

(This offence is amended with effect from 6 April 2013 - see below.)

This offence came into force on 1 May 2004.

Under section 58(1) a person commits an offence if he intentionally arranges or facilitates travel within the United Kingdom by another person (B) and either:

  1. he intends to do anything to or in respect of B, during or after the journey and in any part of the world, which if done will involve the commission of a relevant offence, (see above), or
  2. he believes that another person is likely to do something to or in respect of B, during or after the journey and in any part of the world, which if done will involve the commission of a relevant offence.

Sections 60(2) and 60(3) are amended by section 31(4) UK Borders Act 2007 to apply to anything done whether inside or outside the United Kingdom, with effect from 31 January 2008.

This is an either-way offence and on conviction on indictment, is subject to imprisonment for a term not exceeding 14 years. This offence is also a "lifestyle offence" for the purposes of the Proceeds of Crime Act 2002.

This offence is likely to lead to a significant sentence on conviction. Such offences would almost certainly receive sentences over 12 months and thus should be tried in the Crown Court.

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Trafficking out of the UK for sexual exploitation - section 59 Sexual Offences Act 2003

(This offence is  amended with effect from 6 April 2013 - see below.)

This offence came into force on 1 May 2004.

Under section 59(1) a person commits an offence if he intentionally arranges or facilitates the departure from the United Kingdom of another person (B) and either:

  1. he intends to do anything to or in respect of B, after B's departure but in any part of the world, which if done will involve the commission of a relevant offence, (as stated above), or
  2. he believes that another person is likely to do something to or in respect of B, after B's departure but in any part of the world, which if done will involve the commission of a relevant offence.

Sections 60(2) and 60(3) are amended by section 31(4) UK Borders Act 2007 to apply to anything done whether inside or outside the United Kingdom, with effect from 31 January 2008.

This is an either-way offence and on conviction on indictment, is subject to imprisonment for a term not exceeding 14 years. This offence is also a "lifestyle offence" for the purposes of the Proceeds of Crime Act 2002.

This offence is likely to lead to a significant sentence on conviction. Such offences would almost certainly receive sentences over 12 months and thus should be tried in the Crown Court.

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Trafficking people for sexual exploitation - section 59A Sexual Offences Act 2003

Section 109 Protection of Freedoms Act 2012 repeals sections 57, 58 and 59 Sexual Offences Act 2003 and inserts section 59A. This offence comes into effect from 6 April 2013 and extends territorial jurisdiction.

Under section 59A

  1. a person ("A") commits an offence if A intentionally arranges or facilitates -
    1. the arrival in, or entry into, the United Kingdom (UK) or another country of another person ("B")
    2. the travel of B within the UK or another country, or
    3. the departure of B from the UK or another country, with a view to the sexual exploitation of B
  2. for the purposes of subsection (1) (a) and (c) A's arranging or facilitating is with a view to the sexual exploitation of B if, and only if :
    1. A intends to do anything to or in respect of B, after B's arrival, entry or departure but in any part of the world, which if done will involve the commission of a relevant offence, or
    2. A believes that another person is likely to do something to or in respect of B, after B's arrival, entry or departure but in any part of the world, which if done will involve the commission of a relevant offence.
  3. for the purposes of subsection (1) (b) A's arranging or facilitating is with a view to the sexual exploitation of B if, and only if :
    1. A intends to do anything to or in respect of B, during or after the journey and in any part of the world, which if done will involve the commission of a relevant offence, or
    2. A believes that another person is likely to do something to or in respect of B, during or after the journey and in any part of the world, which if done will involve the commission of a relevant offence.
  4. A person who is a UK national commits an offence under this section regardless of:
    1. where the arranging or facilitating takes place, or
    2. which country is the country of arrival, entry, travel to or departure.
  5. A person who is not a UK national commits an offence under this section if :
    1. any part of the arranging or facilitating takes place in the UK, or
    2. the UK is the country of arrival, entry, travel or departure.
  6. A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 12 months and on conviction on indictment to 14 years' imprisonment. This offence is also a "lifestyle offence" for the purposes of the Proceeds of Crime Act 2002. Such offences would almost certainly receive sentences over 12 months and thus should be tried in the Crown Court.

Section 59A: interpretation

In section 59A -

  • "country" includes any territory or other part of the world  
  • "relevant offence" means (a) any offence under Part 1 of the Sexual Offences Act 2003, or an offence under section 1(1)(a) of the Protection of Children Act 1978 or anything done outside England and Wales which is not an offence within paragraph (a) but would be if done in England and Wales.

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Trafficking people for exploitation - section 4 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004

(This offence is amended with effect from 6 April 2013 - see below.)

This offence came into force on 1 December 2004. Section 31(1) of the UK Borders Act 2007 inserted "or the entry into the UK" under Section 4(1) with effect from 31 January 2008. Section 54 of the Borders, Citizenship and Immigration Act 2009 amended section 4(4)(d) with effect from 10 November 2009.

Under section 4(1) a person commits an offence if he arranges or facilitates the arrival in or the entry into the UK of an individual, and

  1. he intends to exploit the person in the UK or elsewhere, or
  2. believes another person is likely to.

Under section 4(2) a person commits an offence if he arranges or facilitates travel within the UK of an individual in respect of whom he believes has been trafficked into the UK and he intends to exploit the person, or believes another person is likely to, whether in the UK or elsewhere.

Under section 4(3) a person commits an offence if he arranges or facilitates the departure from the UK of an individual and he intends to exploit that person outside the UK, or believes another person is likely to, outside of the UK.

Under section 4(4) for the purposes of these offences, a person is exploited if he is:

  1. the victim of behaviour contravening Article 4 of the ECHR (slavery or forced labour);
  2. encouraged, required or expected to do something which would mean an offence is committed under the Human Organ Transplants Act 1989;
  3. subjected to force, threats or deception designed to induce him:
    i) to provide services of any kind,
    ii) to provide another person with benefits of any kind, or
    iii) to enable another person to acquire benefits of any kind; or
  4. a person uses or attempts to use him for any purpose within sub-paragraph i, ii or iii of paragraph c, having chosen him for that purpose on the grounds that:
    i) he is mentally or physically ill or disabled, he is young or has a family relationship with a person; and
    ii) a person without the illness, disability, youth or family relationship would be likely to refuse to be used for that purpose.

Under subsection 4(a) behaviour contravening Article 4 of ECHR (slavery or forced labour), further guidance on what constitutes servitude and forced and compulsory labour can be found in the ECHR case of Siliadin v France [26 July 2005] (Application no. 73316/01). The evidence showed the applicant, an alien who arrived in France at the age of sixteen, had worked for several years for the respondents carrying out household tasks and looking after their three, and subsequently four, children for seven days a week, from 7 am to 10 pm, without receiving any remuneration. She was obliged to follow instructions regarding her working hours and the work to be done, and was not free to come and go as she pleased. The Court unanimously held that there has been a violation of Article 4 of the Convention.

Under subsections 4(c) (ii) and (iii) benefits is defined as any advantage derived by the trafficker, which could include financial gain, profit, personal benefit or privilege as well as state financial assistance.

Sections 5(1) and 5(2) are amended by section 31(4) UK Borders Act 2007 to apply to anything done whether inside or outside the United Kingdom, with effect from 31 January 2008.

The offences are either way. On summary conviction the maximum penalty is six months imprisonment, fine up to the statutory maximum or both. (After section 154 Criminal Justice Act 2003 is commenced the maximum penal sentence on summary conviction will be increased to twelve months imprisonment). Conviction on indictment carries a maximum sentence of fourteen years' imprisonment, a fine or both. This offence is also a "lifestyle offence" for the purposes of the Proceeds of Crime Act 2002.

This offence is likely to lead to a significant sentence on conviction. Such offences would almost certainly receive sentences over 12 months and thus should be tried in the Crown Court.

In circumstances where the victim was not trafficked or the trafficking element cannot be proved to the criminal standard, prosecutors should consider the offence of holding another person in slavery or servitude or requiring them to perform forced or compulsory labour under section 71 of the Coroners and Justice Act 2009. A person commits the offence if they hold the other person (or persons) in slavery or servitude or require another person (or persons) to perform forced or compulsory labour. The circumstances must be such that the defendant knows or ought to know that the person is being so held or required to perform such labour. See the section below on Slavery, Servitude, Forced or Compulsory Labour.

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Trafficking people for labour and other exploitation - section 4 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (AI (ToC) Act) as amended

Section 110 Protection of Freedoms Act 2012 amends subsections (1) to (3) of section 4 AI(ToC) Act with effect from 6 April 2013 to extend territorial jurisdiction and substitutes:

(1A)  a person "A" commits an offence if A intentionally arranges or facilitates:
  1. the arrival in, or entry into, the United Kingdom (UK) or another country of another person (B),
  2. the travel of B within the UK or another country, or
  3. the departure of B from the UK or another country, with a view to the exploitation of B.
(1B)  for the purposes of subsection (1A) (a) and (c) A's arranging or facilitating is with a view to the exploitation of B if:
  1. A intends to exploit B after B's arrival, entry or departure but in any part of the world, or
  2. A believes that another person is likely to exploit B after B's arrival, entry or departure but in any part of the world.
(1C)  for the purposes of subsection (1A) (b) As arranging or facilitating is with a view to the exploitation of B if:
  1. A intends to exploit B during or after the journey and in any part of the world, or
  2. A believes that another person is likely to exploit B during or after the journey and in any part of the world.
4.   for the purposes of this section a person is exploited if:
  1. he is the victim of behaviour that contravenes Article 4 of the Human Rights Convention (slavery and forced labour),
  2. he is encouraged, required or expected to do anything
i) as a result of which he or another person would commit an offence under section 32 or 33 of the Human Tissue Act 2004 as it has effect in the law of England and Wales, or
ii) which, if it were done in England and Wales, would constitute an offence within sub-paragraph (i)
  1. he is subjected to force, threats or deception designed to induce him:
i) to provide services of any kind,
ii) to provide another person with benefits of any kind, or
iii) to enable another person to acquire benefits of any kind; or
  1. a person uses or attempts to use him for any purpose within sub-paragraph i, ii or iii of paragraph c, having chosen him for that purpose on the grounds that: 

i) he is mentally or physically ill or disabled, he is young or has a family relationship with a person, and
ii) a person without the illness, disability, youth or family relationship would be likely to refuse to be used for that purpose.

4A.  A person who is a UK national commits an offence under this section regardless of:
  1. where the arranging or facilitating takes place, or
  2. which country is the country of arrival, entry, travel of departure.
4B.  A person who is not a UK national commits an offence under this section if:
  1. any part of the arranging or facilitating takes place in the UK, of
  2. the UK is the country of arrival, entry, travel or departure.
  1. A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 12 months and on conviction on indictment to 14 years' imprisonment. This offence is also a "lifestyle offence" for the purposes of the Proceeds of Crime Act 2002.

Such offences would almost certainly receive sentences over 12 months and thus should be tried in the Crown Court.

The CPS has signed a Joint Working Agreement between the Association of Chief Police Officers, the UK Border Agency and the Gangmasters Licensing Authority outlining best practice for investigation of forced labour and trafficking for forced labour offences, which can be accessed here.

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Conspiracy to traffick

A conspiracy to traffick may involve the doing of an act by one or more of the parties, or the happening of an event, in a place outside England and Wales. This situation is covered by section 1A of the Criminal Law Act 1977 which provides that where (a) that act or event would be an offence by the law of that place and (b) it would also be an offence here (but for the fact that it takes place outside the jurisdiction), then a person in England and Wales who becomes a party to the agreement or, being a party, does anything in pursuance of the agreement (even before its formation) can be charged with conspiracy contrary to section 1(1) of the Criminal Law Act 1977. Prosecutors should note, however, that by virtue of section 4(5) of the same Act, the prior consent of the Attorney General is required to prosecute offences to which Section 1A applies.

For further guidance on obtaining the consent of the Law Officers prosecutors should refer to legal guidance on Consents to Prosecute.

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Sentencing

Sentencing guidelines have been included under the relevant statutory offences, including relevant leading sentencing guide cases.

The following cases provide guidelines on sentencing and reflect the degree of coercion, force and violence used in the exploitation of their victims:

  • R v Plakici [2005] 1 Cr.App.R.(S.) 19, Attorney General's Reference (No 6 of 2004) dealt with a series of individual offences that amounted to an extremely serious case of trafficking. The offender had arranged for the illegal entry of women and young girls into this country in circumstances that involved both deception and coercion and forced them to work as prostitutes. Counts of illegal entry attracted sentences of five years, of living on immoral earning five years, of kidnapping ten years, and of incitement to rape, eight years. A total sentence of 23 years was imposed.
  • R v Maka [2006] 2 Cr.App.R.(S.) 14. Sentences totalling 18 years were upheld, on a guilty plea, in the case of a man who trafficked a 15 year old girl into this country and repeatedly sold her to others for the purposes of prostitution. The court endorsed the comment of the sentencing judge that human trafficking was a degrading activity producing untold misery around the world and that the case had echoes of slavery with the girl being sold from one procurer to another. It added that the offence was intended to embrace a wide variety of different forms of conduct, identified as trafficking for sexual exploitation.
  • R v Roci and Ismailaj [2006] 2 Cr.App.R.(S.) 15. In this case the appellants were concerned in the importation and the control in this country of prostitutes from Lithuania. While the women came to this country willingly, they were then coerced to work in unpleasant circumstances and ways contrary to their wishes and to pay over most of their earnings. The sentence on the appellant who was concerned in all these matters was reduced from eleven years to nine years' imprisonment.
  • R v Makai (Atilla) [2008] 1 Cr.App.R.(S.) 73. The appellant appealed against a sentence of 40 months' imprisonment imposed following his plea of guilty to conspiracy to traffic into the UK for sexual exploitation. He was involved in recruiting and arranging for Hungarian girls to come to the UK and work as prostitutes in brothels. He posted advertisements on Hungarian websites inviting girls to contact them and then passed the girls on to other men more closely involved in the trade. The Crown accepted that the girls would have known the kind of work for which they had been recruited. The basis of plea was that the girls came to the UK of their own free will, were above the age of consent, had entered the UK legally, knew prostitution was legal in the UK, and that his role had been limited to introducing them to others that placed them in the brothels. Appeal allowed and 30 months' imprisonment substituted.
  • R v Khan, Khan and Khan [2010] EWCA Crim 2880 The defendants were convicted of an offence of conspiracy to traffic for exploitation under section 4 Asylum and Immigration Act 2004 and each was sentenced to 3 years' imprisonment. They were concerned in the management of a restaurant business and during a period of over 4 years they recruited men from the Middle East and India to work in the restaurant. Their passports and other personal documents were confiscated on arrival in the UK and bond money was handed over to the defendants. They were required to work for 12 hours or more a day for 6 - 7 days a week for little reward. It was found that they had been deceived by promises of attractive wages, had been subjected to conditions of neglect, abuse, deprivation and economic exploitation. Sentences of 4 years' imprisonment were substituted for 2 of the defendants.
  • Connors (x4) and R [2013] EWCA Crim 324 The defendants were convicted of a single count of conspiracy to require a person to perform forced or compulsory labour and sentenced to 6 years and 6 months' imprisonment, 4 years imprisonment, 3 years detention in a YOI, 3 years' imprisonment and 2 years 3 months' imprisonment. The family persuaded, cajoled and bullied vulnerable men to work for them on the basis of false promises that they would be provided with accommodation and food, and would be paid. They were chosen deliberately because they were homeless, addicted to alcohol, friendless and isolated, and effectively "down and out". They worked long hours, 7 days a week, in very poor conditions without proper equipment or clothing. They were subjected to violence, threats and verbal abuse. Some were told that they could never leave, and were threatened with physical reprisals if they did so. One manifestation of this level of control was that many of those exploited were effectively deprived of the will to leave, and others were too demoralised to. The case was referred on AG reference as unduly lenient sentence but the court found that whilst their freedom was "significantly curtailed", it did not amount to servitude. The sentences on the defendants fell within the appropriate range, if at the lower end of the appropriate bracket, accordingly the sentences were not interfered with.

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Forfeiture and detention of vehicles etc. - Section 54 and Schedule 4 of the Violent Crime Reduction Act 2006

Forfeiture: If a person is convicted on indictment of an offence under sections 57 to 59 of the Sexual Offences Act 2003, section 60A will enable the courts to order the forfeiture of a vehicle, ship or aircraft used or intended to be used in connection with the offence.

Detention: Section 60B enables a constable, or an immigration officer not below the rank of chief immigration officer, to detain a vehicle, ship or aircraft of a person arrested for an offence under sections 57 to 59 if it is one which the constable or immigration officer concerned has reasonable grounds for believing could, on conviction of the arrested person for the offence for which he was arrested, be the subject of an order for forfeiture made under section 60A.

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Trafficked Victims

Definition

There is no definitive definition of a trafficked victim. Trafficked victims are identified as those persons who are exploited at the hands of their traffickers and victims of the criminality as defined by the Palermo Protocol. This definition is reflected in UK legislation.

Loss of freedom is a defining feature of trafficking. For example, trafficked victims are often not allowed to leave the premises where they are held or if they do, they are accompanied by a trafficker. Victims suffer frequent and severe abuse, both physical and psychological. Violence and physical harm are the hallmarks of trafficked women, in particular.

From a prosecution perspective it is important to adhere to the standards set out in the Code of Practice for Victims of Crime which places the needs of victims at the heart of the criminal justice system.

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Council of Europe Convention on action against Trafficking in Human Beings

The Convention on Action against Trafficking in Human Beings was implemented on 1 April 2009. This introduced a number of provisions to improve our ability to identify victims, refer them to appropriate support and bring more cases to justice. The provisions include mechanisms for early identification of victims, national referral schemes, and the granting of recovery and reflection periods and renewable residence permits to victims.

National Referral Mechanism: is a single framework centred on victim identification and referral to appropriate support. First responders (which may include police, Immigration authorities, local authorities and certain NGOs) can refer all suspected victims of trafficking to a Competent Authority for a decision to be made within 48 hours. A first responder will complete a referral form recording their encounter with a potential victim. Sufficient information will be included to enable a decision on whether the subject has "reasonable grounds" for being treated as a victim of trafficking. General indicators of a potential victim's behaviour, circumstances and responses to questions will assist in the assessment.

A multi-agency Competent Authority is based in the UK Human Trafficking Centre (UKHTC). The UKHTC will act as a central point of contact for all agencies likely to encounter victims (e.g. NGOs, police, Immigration authorities, local authorities). A linked but separate Competent Authority in UK Border Agency will address situations where trafficking is raised as part of an asylum claim or in the context of another immigration process. For general enquiries contact the UKHTC; National Referral Mechanism forms can be found on the Gov website.

Reflection period: Where the competent authority has confirmed "reasonable grounds", victims will be eligible for a reflection period of 45 days, which will be extendable in some circumstances, for example extreme trauma. This is to enable a victim to recover from their immediate physical or psychological trauma before deciding whether to support an investigation / prosecution. However this does not preclude the victim from speaking with law enforcement to provide intelligence or information or make a statement if they wish to assist an investigation

Residence permit: Following the Reflection period, victims may be eligible for a residence permit, which will be granted for a minimum of one year and is renewable. This will be granted where a victim is co-operating with an investigation or criminal proceedings, or it is deemed necessary owing to their personal circumstances.

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Disclosure

In all cases of human trafficking, where the victim has been referred to the competent authority for a "reasonable grounds" decision, the referral form completed by a first responder recording their encounter with the victim may be disclosable to the defence. Information on the form might go to the credibility of the victim or other prosecution witnesses. There may be inconsistencies in the victim's initial answers given in the course of preparation of the initial report when compared with what is contained in the victim's statement. Inconsistencies are probably capable of assisting the defence in cross examination
 and may therefore have to be disclosed to the defence.

The prosecutor must apply the disclosure tests set out in the Code of Practice to the Criminal Procedure and Investigations Act, issued under section 23, and disclose the form to the defence if it is capable of undermining the case for the prosecution or of assisting the defence case. The form should be identified by the police on MG6.

Full guidance on disclosure, including the Protocol for the Control and Management of unused Material in the Crown Court can be found in the Disclosure Manual, elsewhere in the Legal Guidance.

Cross-examination of the victim on grounds of inducement

There may be benefits to victims in claiming they have been trafficked: they are able to access accommodation and support and are eligible for a (renewable) residence permit to remain in the UK. Prosecuting advocates will need to be alert to cross-examination of the victim at court on the grounds of inducement and their spurious claims of being a trafficked victim in order to acquire a residence permit.

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Case Management Issues

Many victims take significant risks in giving evidence. Prosecutors should consider the range of measures available to support and protect trafficked victims giving evidence and make appropriate applications to the court.

Achieving Best Evidence (ABE) - Video interviews

The revised edition of "Achieving Best Evidence in Criminal Proceedings: Guidance for Vulnerable or Intimidated Witnesses" (ABE) provides full guidance on videotaped interviews for vulnerable or intimidated witnesses.

Special Measures

Under section 17(4) Youth Justice and Criminal Evidence Act 1999 a trafficked victim who has been subjected to sexual exploitation is deemed automatically to be "intimidated".

Early Special Measures meetings: provide an opportunity for the investigating officer and prosecutor to either meet or speak on the phone, to discuss a victim's needs, their eligibility for special measures and the most appropriate special measure for them.

Appropriate measures may include screening the victim from the defendant, giving evidence through CCTV, providing video recorded evidence in chief or clearing the public gallery. In some instances, this might include not revealing the victim's identity when giving evidence.

For further information see Special Measures, elsewhere in the Legal Guidance.

Victims who wish to return to their home country

Where a victim has chosen to be repatriated to their home country and they do not wish to return to the UK, there is provision for evidence to be given through television link from their country under section 32 Criminal Justice Act 1988; however evidence may not be given without leave of the court. An application should be made by giving notice in writing within 28 days after the committal or notice of transfer, specifying the grounds for the application. In cases where a victim or witness has returned to their home country, is required to return to the UK to give evidence at a criminal trial but is subject to immigration control, Home Office Circular 2/2006 provides guidance on the appropriate procedures. It applies to cases where a witness would otherwise be required to leave the UK or needs to return to the UK.

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Reporting Restrictions

Reporting restrictions can be applied for under section 46 of the Youth Justice and Criminal Evidence Act 1999 to protect the identity of the witness. Whilst the media can be useful in raising awareness of human trafficking, media interest in specific cases can be unhelpful during the investigation and prosecution phase. Media coverage of witness identities can reveal the identity of witnesses and create safety issues both within the UK and the country of origin as national media often pick up the story from international news networks. Be aware though that there can be no guarantee of restricting press reporting in other jurisdictions, as there may be no mutual recognition of court orders made in England and Wales.

Anonymity

Where there may be safety concerns for the victim, pseudonyms can be used for witness statements if desired. For further information see Director's Guidance on Witness Anonymity.

Interpreters

Consideration must be given, where appropriate, to issues such as gender, political orientation or affiliation, regional origins and cultural background of the interpreter, and the interpreter should be selected to conform to the reasonable requirements set by the witness, if such preferences are indicated. Arrangements for the selection and engagement of appropriately qualified interpreters can be found in the National Agreement on Arrangements for the Use of Interpreters, Translators and Language Service Professionals in Investigations and Proceedings within the Criminal Justice System.

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Children

Child trafficking is the practice of transporting children into, within and out of the UK for the purposes of exploitation. The exploitation can be varied and include:

  • labour exploitation (e.g. construction, restaurants, etc); 
  • domestic servitude;
  • criminal activity (e.g. cannabis cultivation, petty street crime, illegal street trade, etc);
  • sexual exploitation (brothels, closed community, for child abuse images);
  • application of residence; 
  • benefit fraud;
  • illegal adoption; and
  • forced marriage.

Child trafficking and exploitation is often accompanied by various types of control such as violence, the threat of violence, sexual abuse, alcohol and drug abuse, emotional abuse, manipulation through twisting cultural practices and imprisonment to suppress victims and ensure their compliance. For that reason, victims may not fully cooperate with an investigation or prosecution for fear of reprisals. Offenders may also attempt to abduct or coerce the child whilst criminal proceedings are ongoing and while the child is being cared for by the local authority.

Children are sometimes forced into committing criminal acts on behalf of their trafficker. Examples include forced cannabis cultivation and organised street crime and begging. Where it is found that the child committed an offence as a direct result of trafficking prosecutors should follow the guidance on Prosecution of Defendants (children and adults) charged with offences who might be trafficked victims. If the victim states they are a child, they should be viewed as such until their age can be verified by identification or an independent age assessment carried out by the local authority or a court determination. See Age disputes.

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Internal Trafficking

Whilst the UK is primarily a destination state for human trafficking, there is increasing awareness of "internal trafficking" of children. This term is used to describe the trafficking of children born, or normally resident in the UK. Internal trafficking is characterised by the recruitment, grooming and sexual exploitation of young teenage girls in the UK by organised crime gangs. Investigations may arise in circumstances where a child has gone missing (often, but not limited to, children in local authority care). They may be sexually abused before being taken to other towns and cities where the sexual exploitation (prostitution) continues.

However not all cases of child sexual exploitation and abuse will be considered to be internal trafficking. Where evidence obtained by investigators supports an offence of trafficking within the UK (under section 58 Sexual offences Act 2003, as amended by section 59A (1)(b), then this offence should be charged. Where other serious sexual offences involving the exploitation of children are disclosed, prosecutors should refer to legal guidance on prosecuting Child Sexual Abuse cases.

Further guidance on investigating and evidencing such cases can be found in the NPIA Child Abuse Guidance (2009).

The Department for Education (DFE) and Home Office published guidance in December 2007 Working Together to Safeguard Children Who May Have Been Trafficked provides guidance on the roles and functions of all relevant agencies involved in identifying and supporting child victims.

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Slavery, Servitude, Forced and Compulsory Labour

In introducing this offence, it was Parliament's intention to introduce clear, enforceable offences of servitude and forced labour in order to give further and specific protection to those who may be the victims of forced labour. Trading in slaves remains an offence under the Slave Trade Acts 1824-1873; however, section 71 Coroners and Justice Act 2009 makes clear that holding a person in slavery is also an offence. The section 71 offence will be relevant where the victim has been subjected to behaviour that contravenes Article 4 of the Human Rights Convention (slavery and forced labour) but was not trafficked, or the trafficking element cannot be proved to the criminal standard.

Whilst there is a range of pre-existing legislation which could cover behaviour relating to servitude and forced or compulsory labour, such as offences of false imprisonment, blackmail and assault, the section 71 offence allows prosecutors to present the full extent of the behaviour, rather than relying on these offences which may not fully reflect the nature of the offending. Notwithstanding this, prosecutors should also consider charging specific offences in addition to the section 71 offence where appropriate (for example where the person has been physically assaulted while subjected to forced labour).

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The Offence

Section 71 of the Coroners and Justice Act 2009 ("the 2009 Act") creates an offence of holding another person in slavery or servitude or requiring them to perform forced or compulsory labour. The offence came into force on 6 April 2010.

Section 71 provides that:

  1. A person (D) commits an offence if:
    1. D holds another person in slavery or servitude and the circumstances are such that D knows or ought to know that the person is so held, or
    2. D requires another person to perform forced or compulsory labour and the circumstances are such that D knows or ought to know that the person is being required to perform such labour.
  2. In subsection (1) the references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with Article 4 of the Human Rights Convention (which prohibits a person from being held in slavery or servitude or being required to perform forced or compulsory labour).
  3. A person guilty of an offence under this section is liable:
    1. on summary conviction, to imprisonment for a term not exceeding the relevant period [12 months] or a fine not exceeding the statutory maximum or both;
    2. on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine, or both.
  4. In this section:
    • "Human Rights Convention" means the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4 November 1950;
    • "the relevant period" means:
      • in relation to England and Wales, 12 months; and
      • in relation to Northern Ireland, 6 months.

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Exceptions to the offence

Article 4(3) of the ECHR sets out exceptions (below) which are applicable to the section 71 offence. For the purpose of this offence the term "forced or compulsory labour" shall not include the following exceptions:

  • any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;
  • any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
  • any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
  • any work or service which forms part of normal civic obligations.

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Elements of the offence

A person commits the offence if they hold the other person (or persons) in slavery or servitude or require another person (or persons) to perform forced or compulsory labour. The circumstances must be such that the defendant knows or ought to know that the person is being so held or required to perform such labour.

Section 71 does not specifically define slavery, servitude or forced or compulsory labour, but rather refers to Article 4 of the European Convention on Human Rights. Therefore, in interpreting section 71, police, prosecutors and the courts will need to have regard to existing case-law on Article 4 ECHR and international conventions to find guidance defining the parameters of each of the terms. A brief synopsis of the terms follows.

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Slavery or Servitude

Slavery is described as the status or condition of a person over whom any or all of the powers attaching the right of ownership are exercised. In essence, characteristics of ownership need to be present for a state of slavery to exist.

Servitude is a linked but much broader term than slavery. In Siliadin v France [2005] EHRLR 660 (paragraph 123), the ECHR reaffirmed that servitude "prohibits a particularly serious form of denial of freedom. It includes, in addition to the obligation to provide certain services to another, the obligation on the "serf" to live on the other's property and the impossibility of changing his status".

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Forced or compulsory labour

The ECHR in the case of Van der Mussele 8919/80 affirmed that the ILO conventions were the starting point for interpreting Article 4. The conventions, defined forced or compulsory labour as being 'all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily'. To that end, the section 71 offence will require an element of coercion or deception between the defendant and the victim.

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Evidential considerations

Whether there is evidence that a person was subject to servitude or forced or compulsory labour will depend on the circumstances of the individual case. However, there are a number of factors which may, depending on the circumstances, indicate that an individual may be held in servitude or subjected to forced or compulsory labour. The essential elements are those of coercion or deception, which may be demonstrated in a number of ways. The kind of behaviour that would normally, of itself, be evidence of coercion includes (but is not limited to):

  • violence or threats of violence by the employer or the employer's representative;
  • threats against the worker's family;
  • threats to expose the worker to the authorities, for example because of the worker's immigration status or offences they may have committed in the past;
  • the person's documents, such as a passports or other identification, being withheld by the employer;
  • restriction of movement;
  • debt bondage;
  • withholding of wages.

Other factors that may be indicators of forced labour include (but are not limited to):

  • the worker being given no information, or false information, about the law and their employment rights;
  • excessive working hours being imposed by the employer;
  • hazardous working conditions being imposed by the employer;
  • unwarranted and perhaps unexplained deductions from wages;
  • the employer not paying the full tax or national insurance contributions for the worker;
  • the absence of any formal or implied contract of employment;
  • poor accommodation provided by the employer;
  • poor or misleading information having been given about the nature of the employment;
  • the person being isolated from contact with others;
  • money having been exchanged with other employers/traffickers etc for the person's services in an arrangement which has not been agreed with the person concerned or which is not reflected in his remuneration.

In practice, conditions of servitude and forced labour often involve physical and sexual assaults, such as restriction of liberty or violence. It is important to recognise that establishing that a person was held in servitude or required to undertake forced or compulsory labour does not require the prosecution to prove actual physical force was used or that the victim was physically detained or imprisoned. There may be situations where no physical violence is used or there are no restrictions on movement but more psychological or coercive means are used to effect control. Requiring someone to work in conditions contrary to human dignity might reflect the circumstances in which exploited victims are compelled to work, where they are deprived of essential needs and subject to humiliation, threats and insults.

For example, the victim may have their passport confiscated, be required to work long hours with few breaks, under poor conditions suffering verbal abuse but is not physically assaulted in any way. Accommodation may have been made a condition of employment, for which a high rent is paid, comparative to earnings, and which creates a debt bondage relationship. The victim may be told that if they leave the accommodation they will lose their employment or have to continue to pay for accommodation. Whilst they may be physically free to leave, they are effectively a prisoner of their circumstances.

The case of Siliadin v France 43 EHRR is illustrative of the kinds of conduct that may, cumulatively amount to holding a person in servitude. The evidence showed the applicant, an alien who arrived in France at the age of sixteen, had worked for several years for the respondents carrying out household tasks and looking after their three, and subsequently four, children for seven days a week, from 7 am to 10 pm, without receiving any remuneration. She was obliged to follow instructions regarding her working hours and the work to be done, and was not free to come and go as she pleased, though she was allowed out on her own with permission of her employers. The Court unanimously held that there has been a violation of Article 4 of the Convention.

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Sentencing

The maximum penalty on conviction on indictment is imprisonment for a term not exceeding 14 years or a fine or both.

The maximum penalty on summary conviction is imprisonment for a term not exceeding six months (with the usual modification for if/when the increase to 12 months in the CJA 2003 is commenced) or a fine or both.

The Joint Working Agreement between ACPO, the UK Border Agency and the Gangmasters Licensing Authority outlining best practice for investigation of forced labour and trafficking is also pertinent to this offence.

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Good Practice and case management

Developing knowledge and experience in prosecuting cases for forced labour and slavery offences has identified examples of good practice which prosecutors may wish to consider when dealing with similar cases.

The indictment

  • Decision whether to charge offences of servitude or forced labour: In Siliadin v France (2006) 43 EHRR it was decided that in order for servitude to be established a court must find that it was impossible for the workers to change their status. In Connors (x4) and R [2013] EWCA Crim 324 involving 4 defendants who controlled, threatened and used violence on large numbers of extremely vulnerable men to work for them without pay, the judge considered that this element could not be established as he didn't believe that it was impossible for them to leave. The issue of establishing the impossibility of changing status is one that can arise and in some cases it has led to judge's ruling that the case should not go to the jury. Prosecutors should consider including the fall back offence of forced labour in these circumstances.
  • Charging conspiracy: in recent cases a number of defendants have been charged for requiring vulnerable victims to perform forced labour, but where it could not be established that one person had controlled a single victim, offences of conspiracy have been charged rather than the substantive offences. Whilst there had been concerns around establishing group activity as the defendants had taken different roles, if substantive offences had been charged a number of defendants would have been lost. Providing minor defendants are excluded, there are advantages to charging conspiracy.

Bad character evidence

In a recent case the judge ruled that bad character evidence from witnesses who had worked for the defendants at a time that pre-dated the indictment period (and pre-dated the enactment of the legislation) could not be admitted. Although it was the judge's reasoning in that case, prosecutors may wish to consider whether bad character may be introduced in this type of case.

Support for victims

Victims and witnesses in these cases are likely to be extremely vulnerable and they can present challenges in managing and supporting them before and during the trial. Often they are deliberately targeted for their vulnerabilities; usually they are homeless, addicted to alcohol or drugs, friendless, isolated and destitute. When they have been controlled by discipline, threats and violence, they effectively become institutionalised. In such cases, it is good practice for the victims to be removed to a private reception centre, where their needs can be assessed and referral made to appropriate support agencies. The police have worked with social services for the co-ordination of support services to provide on-going accommodation and retain regular contact leading up to trial. Guidance is available to investigating officers in these types of cases from the UK Human Trafficking Centre and the National Crime Agency in the "Best Practice Guide to Investigating Labour Exploitation." The CPS should liaise with the police in advance of the trial to agree costs of accommodation and transport to support them.

Good practice has been to limit the number of third party contacts with the victims, to help them and reduce defence cross examination to undermine the victim's credibility by allegations of coaching.

If a victim of forced labour or slavery is also a suspect in a criminal offence please see the section below on "Suspects in a criminal case who might be victims of trafficking or slavery".

Digital presentation of evidence

Prosecutors should consider electronic case presentation in these cases to present exhibits and enable vulnerable witnesses to give evidence in court via video link to reduce their trauma and without them having to be physically present, giving them added protection. Digital Evidence Screens should also allow for CCTV footage and other video and audio evidence to be presented easily in court. 

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Suspects in a criminal case who might be victims of trafficking or slavery

This part of the guidance applies to victims of trafficking who are also suspects in a criminal offence, but when dealing with cases involving a child, prosecutors must consider the additional requirements set out below in the section "Suspects who may be children". Victims of slavery, including forced labour and servitude, are also covered by this part of the guidance (see below), if they are suspected of committing a criminal offence, but the trafficking element is not always relevant in every such case.

Indicators of trafficking

Prosecutors should be alert to the particular circumstances or situations where someone suspected of committing a criminal offence might also be a trafficked victim, e.g. an unaccompanied foreign national child who is in the UK but committing offences such as pickpocketing or cultivation of cannabis or in the case of adults, crimes involving immigration document offences when fleeing their situation or controlling prostitution offences. However, these are examples of offences most frequently committed and is not an exhaustive list. Guidance is published to investigators on indicators of trafficking and this may also be of help to prosecutors.

Awareness of the prosecutor's obligations

When considering whether to proceed with prosecuting a suspect who might be a victim of trafficking, prosecutors should be aware of the clear obligations imposed to consider whether to not prosecute where the suspect has been compelled to commit a criminal offence as a direct consequence of being trafficked.

The prosecutor's obligations

These obligations arise under:

  • Article 4 of ECHR which prohibits slavery and forced labour.
  • Article 26 of the Council of Europe Anti-Trafficking Convention which requires the United Kingdom to: "... provide for the possibility of not imposing penalties on victims [of trafficking] for their involvement in unlawful activities, to the extent that they have been compelled to do so".
  • Article 8 of EU Anti-Trafficking Directive 2011/36/EU whereby "national authorities are entitled not to prosecute or impose penalties on victims of trafficking human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to trafficking". 

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A three-stage approach to the prosecution decision

In addition to applying the Full Code Test in the Code for Crown Prosecutors, prosecutors should adopt the following three stage assessment: 

  1. is there a reason to believe that the person has been trafficked? if so,
  2. if there is clear evidence of a credible common law defence of duress, the case should be discontinued on evidential grounds; but
  3. even where there is no clear evidence of duress, but the offence may have been committed as a result of compulsion arising from trafficking, prosecutors should consider whether the public interest lies in proceeding to prosecute or not. (See the judgment in LM & Ors [2010] EWCA Crim 2327)

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The duty to make proper enquiries and to refer through the National Referral Mechanism (NRM)

In considering whether a suspect might be a victim of trafficking, as required in the first stage of the assessment, prosecutors should have regard to the following:

  1. the duty of the prosecutor to make proper enquiries in criminal prosecutions involving individuals who may be victims of trafficking.
  2. The enquiries should be made by:
      • advising the law enforcement agency which investigated the original offence that it must investigate the suspect's trafficking situation; and 
      • advising that the suspect is referred through the NRM for victim identification. All law enforcement officers are able to refer potential victims of trafficking through the NRM. Referral forms can be found here. Further information concerning the NRM can be found on the Council of Europe Convention on Action against Trafficking in Human Beings.
      • If an adult suspect does not consent to their referral, the charging decision should be made on whatever other information might be available, without the benefit of the Competent Authority's (CA) decision on their victim status (See below for explanation of the CA).
      • These steps must be done regardless of what has been advised by the investigator or whether there is an indication of a guilty plea by the suspect's legal representative (see the section ">Early guilty plea" below). It should be noted that adults must consent to have their case referred through the NRM.

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Referral through the NRM and the Competent Authority decision

  • Following the NRM referral, the Competent Authority (CA) will first make a "reasonable grounds" decision. In the United Kingdom, the CA is either the Home Office or the UK Human Trafficking Centre (UKHTC) depending on the victim's immigration status. A positive reasonable grounds decision is made when there are reasonable grounds to believe the individual is a potential victim of human trafficking. This decision should take 5 days. The trafficked victim will then be eligible for government funded support during a recovery and reflection period for 45 days.
  • During the 45 day period, the CA gathers further information about the victim; and this additional information is used to make a conclusive decision on whether the referred person is a victim of human trafficking.
  • A conclusive decision is whether on the balance of probability it is more likely than not that the individual is a victim of human trafficking.
  • Prosecutors should take account of the CA decision (reasonable grounds or conclusive grounds) of the identification and status of the suspect as a victim of trafficking when considering the decision to prosecute. 

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Where there is credible evidence of trafficking (a positive CA decision)

  • Prosecutors should consider whether or not there is clear evidence of a credible common law defence of duress, as required in the second stage of the assessment. If so the case should be discontinued on evidential grounds.
  • If not consider whether or not the trafficking victim was compelled to commit the offence.

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Has the victim been compelled to commit an offence?

The following guidance on considering whether a victim has been compelled, as required in the third stage of the assessment, applies to adults only and does not apply to child victims of trafficking (see the section below "Children and "the means of trafficking"").

"Compulsion" includes all the means of trafficking defined by the United Nations Protocol on Trafficking (The United Nations Convention against Transnational Organised Crime 2000 supplemented by the Protocol to Prevent, Suppress and Punish Trafficking in Persons.): threats, use of force, fraud and deception, inducement, abuse of power or of a position of vulnerability, or use of debt bondage. It does not require physical force or constraint.

In considering whether a trafficked victim has been compelled to commit a crime, prosecutors should consider whether any of these means has been employed so that the victim has effectively lost the ability to consent to his / her actions or to act with free will.

The means of trafficking used in an individual case may not be sufficient to give rise to a defence of duress, but how the person was trafficked will be relevant when considering whether the public interest is met in deciding to prosecute or proceed with a prosecution.

In assessing whether the victim was compelled to commit the offence, prosecutors should consider whether:

  • the offence committed was a direct consequence of, or in the course of trafficking and whether the criminality is significantly diminished or effectively extinguished because no realistic alternative was available but to comply with the dominant force of another. 

Where a victim has been compelled to commit the offence, but not to a degree where duress is made out, it will generally not be in the public interest to prosecute unless the offence is so serious or there are other aggravating factors.

If the defendant has previously been a trafficked victim but the offence has been committed without reasonable compulsion occasioned by the trafficking, there are no particular trafficking related public interest considerations, and the Full Code Test should be applied in the usual way.

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Early guilty plea indicated

Where there is (1) an indication of an early guilty plea, (2) a full investigation has not been carried out and (3) the circumstances are such that there is suspicion of trafficking: at the first hearing prosecutors should request an adjournment for further investigation and ask that a plea is not formally entered.

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Credible evidence of trafficking post-charge

In cases where a decision has already been taken to charge and prosecute a suspect, but further information or evidence comes to light, or the status of a suspect as a possible credible victim of trafficking is raised post-conviction, for example in mitigation or through a pre-sentence report, then prosecutors should seek relevant adjournments and ensure that the steps outlined in the section "The duty to make proper enquiries and to refer through the NRM" above are carried out.

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Suspects who may be children - Additional requirements

Assessing age and trafficking status

In cases where the defendant may be a child victim of trafficking, two linked questions must be addressed:

  1. what is the defendant's age?
  2. what evidence is there to suggest that the defendant has been trafficked?

If the defendant is a child victim of trafficking, the extent to which the crime alleged against him was consequent on and integral to his / her exploitation must be considered. In some cases the criminal offence is a manifestation of the exploitation. This might also arise in the case of an adult victim:  see paragraph 20 of L, HVN, THN and T [2013] EWCA Crim 991.

Due enquiry as to age

Section 99(1) of the Children and Young Persons' Act 1933 directs the court to "make due inquiry" about the defendant's age and "take such evidence as may be forthcoming at the hearing of the case" for this purpose. Similar provisions require the court addressing the age question to consider "any available evidence" (Section150 of the Magistrates Court Act 1980; Section 1(6) of the Criminal Justice Act 1982; and Section 305(2) of the Criminal Justice Act 2003).

Where any issue as to the age of a defendant arises, it must be addressed at the first court appearance. The documentation accompanying the defendant to court should record his date of birth, whether as asserted by him, or as best known to the prosecution, or indeed both.

If age becomes or remains an issue at the Plea and Case Management Hearing in court, prosecutors should ensure that the appropriate age-assessment enquiries are carried out. This may require a request for an adjournment to the court.

Prosecutors should consider the separate CPS guidance concerning age assessment. See paragraphs 31 and 32 of L, HVN, THN and T [2013] EWCA Crim 991.

Presumption that a victim is a child

Article 10(3) of the Council of Europe Anti-Trafficking Convention provides: "When the age of the victim is uncertain and there are reasons to believe that the victim is a child, he or she shall presume to be a child and shall be accorded special protection measures pending verification of his/her age". If at the end of a "due enquiry" into age the age of the defendant remains in doubt s/he must be treated as a child. See paragraph 25 of L, HVN, THN and T [2013] EWCA Crim 991.

Referring children through the NRM

In the case of suspects who are (or appear to be) children, the NRM referral should be made through the relevant social services department.

Children and "the means of trafficking"

In determining whether a child is a victim of trafficking, his or her consent to being trafficked is irrelevant and the means by which they are trafficked is also irrelevant. Therefore it is not necessary for any of the following to be present: threats, use of force, fraud and deception, inducement, abuse of power or of a position of vulnerability, or use of debt bondage.

When considering whether to prosecute a child victim of trafficking, prosecutors will only need to consider whether or not the offence is committed as a direct consequence of, or in the course of trafficking.

Guidance has been issued to police and Immigration authorities on identification of victims and the indicators that might suggest that someone is a trafficked victim. However, all decisions in the case remain the responsibility of the prosecutor.

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Victims of slavery including forced labour and servitude

Prosecutors should also be alert to situations where a person suspected of having committed a criminal offence is also a victim of slavery, including forced labour and servitude. The victim may have been trafficked but this may not always be the case with victims of slavery. Where the victim has been trafficked the 3 stage approach set out above should be followed. However, if there is no evidence that the victim has been trafficked, but there is evidence they have been held as a slave and subject to forced labour or servitude, the prosecutor should consider whether the criminal offence the victim is suspected of committing may be directly related to their position and checks must be made as to whether the offence was committed under duress or other form of compulsion. Where there is clear evidence of duress or compulsion, it will generally not be in the public interest to prosecute unless the offence is so serious or there are other aggravating factors.

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Other issues

Deportation

Procedures in relation to deportation are dealt with in Sentencing - Ancillary Orders, elsewhere in the Legal Guidance.

Compensation

Prosecutors must consider applying for compensation on conviction. Victims of trafficking and forced labour have effectively been used as slaves while their traffickers and exploiters have benefited significantly from their exploitation. Further guidance can be found in Sentencing - Ancillary Orders.

Proceeds of Crime

The human trafficking offences are classed as "lifestyle offences" and as such, the court may use its powers under the Proceeds of Crime Act 2002 to restrain and confiscate the value of a defendant's criminal assets. In these cases, the court assumes that all assets acquired in the previous six years are the proceeds of crime and are available to be confiscated.

Further information on the Proceeds of Crime is available elsewhere in the Legal Guidance.

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